Canadian Labour Reporter

MARCH 17, 2014 8 Canadian HR Reporter, a Thomson Reuters business 2014 CUPE's defence that the employee did not explicitly ask for help was tenuous at best. "The complainant did not need to use any special words to get that assistance. Nor did he need to express the prop- er legal basis underlying his concerns. It was enough that he asked for help regarding the loss of his employment," Schlesinger said in her decision. "It was up to the union to investigate his concerns and determine whether there was any basis under the collective agreement upon which to file a grievance." Furthermore, the particular circumstances of this case led the judge to overrule the time constraints outlined in the col- lective agreement, allowing the employee an opportunity to file his initial grievance. Reference: Educational assistant at Aspen View Public School and the Canadian Union of Public Employees, Local 4575. Nancy E. Schlesinger — arbitrator. Mark Francis for the employer, Re- gina Rasmussen, Linda Huebscher, Debbie Gervais-Arbane for the union. March 4, 2014. Sleeping on the job gets shelter employee sacked CHRISTINE GOOMANSINGH — a front line worker at St. Si- mon's Shelter in Toronto — was fired for sleeping while on duty and for a vicious voicemail message left on a supervi- sor's cellphone. Goomansingh had been working for the shelter for five years when she was fired on Oct. 9, 2013. The United Food and Commercial Workers Union Local 206 filed a grievance on her behalf, arguing termination was too harsh of a pun- ishment. The voicemail message Goomansingh left for shelter su- pervisor Foster Friday-Cockburn was personal in nature, the union argued. Goomansingh testified she was sexually inti- mate with Friday-Cockburn on more than one occasion in 2013 and that the pair was close until September of that year. Goomansingh testified she left the voicemail on Friday-Cock- burn's cell phone on Sept. 21, 2013, after finding out he had become sexually involved with another employee. Additionally, she said, Friday-Cockburn had been sharing the details of their relationship with her coworkers. The voicemail, which included a racial slur, said in part: "I am glad you didn't answer. I did not want to hear your rotten voice… I don't think there is a word to describe you. You're a predator… You know what you did, you are a dog… I don't want you and I never wanted you. You're an ugly asshole. I could never take you anywhere because you're too mucked up… So leave my ass alone and don't call my name you understand? Don't call my name with anybody — you understand? You are dead." Friday-Cockburn considered the message a death threat, he testified, saying he considered going to the police. He denied the affair, saying Goomansingh left the voicemail because she was angry about receiving a two-day suspension after missing a shift in early September. In addition to grieving her termination, the union also grieved the two-day suspension as well as a written warn- ing issued on Aug. 8, 2013, for issuing an overnight pass to a resident. While arbitrator Diane L. Gee found Goomansingh was rightly disciplined for disobeying a direct order and issuing an overnight pass to a resident, she allowed the grievance against the two-day suspension. Gee ruled Goomansingh had not failed to report for work but had, in fact, received permission to take the day off and ordered she be paid any compensation and benefits lost as a result of the suspension. Asleep on the job In addition to the voicemail, the shelter terminated Gooman- singh for sleeping on the job. Several coworkers testified to having seen her sleep on the job and more than one complaint had been registered against Goomansingh for dozing off be- hind the shelter's front line desk. The shelter argued sleeping on the job is cause for immedi- ate dismissal as the health and safety issues involved posed too great a risk to both employees and residents. Goomansingh said she had no recollection of sleeping on the job, but testified it was possible she had dozed off momen- tarily. The stress caused by her personal issues with Friday- Cockburn was preventing her from sleeping at home, she said. No one had ever mentioned her sleeping on the job before, Goomansingh said, and in fact the first time she heard of the allegations was the day she was fired. Sleeping on the job was wrong, Goomansingh said, and she also apologized for the voicemail she left Friday-Cockburn. The shame and humiliation she felt at her personal life be- ing shared with her coworkers lead to poor judgment, she testified, but Goomansingh was confident she could return to work with no issues. The arbitrator agreed, dismissing the grievance and sub- stituting a suspension equivalent to the time Goomansingh was off work. "Doing nothing in response to the complaints… and per- mitting the grievor to continue working… is simply not con- sistent with the existence of a grave health and safety risk," Gee said. Given that Goomansingh's sleeping at work was related to her lack of sleep caused by a one-time stressful event, there is no reason to assume it would occur again, she ruled. And while the voicemail was "horrid, racist, bitter and spite- ful," Goomansingh expressed sincere remorse for her ac- tions and apologized. "The message was highly inappropriate but must be viewed in context," Gee ruled. "It is unlikely that the grievor will en- gage in misconduct of a similar nature again." Reference: St. Simon's Shelter and the United Food and Commer- cial Workers Union Local 206. Diane L. Gee — Arbitrator. Robert Budd for the employer, Robert Church for the union. Feb. 26, 2014. Continued from page 6

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